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Category Archives: Sixth Amendment: Voir Dire (Race)

Crittenden was convicted of murder in 1995, and the case affirmed on mandatory appeal to the California Supreme Court. The 9th Circuit on habeas corpus appeal wrote rehearings and remanding to the District Court. Finally in 2011 the district court made another decision on remand.The case has been sitting in the 9th Circuit for another five years. Finally, in 2015 the 9th Circuit concluded the prosecutor had violated Batson. In 2016 what are the chances of retrying a murderer?

The ground for appeal by the defendant: the prosecutor’s peremptory challenge of a single black juror who was equivocal in her answers to prosecution questions on the death penalty, including her statements “she didn’t like putting people to death.” Of course the 9th Circuit panel included her equivocal answers to other questions and into the appeal jungle went the case.

In the earlier Crittenden v. Ayers, 624 F.3d 9th 943 (2010) opinion the 9th Circuit panel decision the author included an endless number pages reciting voir dire. Allowing a court hearing of an excused juror on the grounds written above is a pretrial waste of time and money. Crittenden is another example. Allowing a ruling on an issue of no relevance to the merits of the case is absurd under the Batson v. Kentucky rule. That plus the endless arguments delaying the trial and the cost of any retrial.

When the Supreme Court decided the Batson v. Kentucky case, 476 U.S. 79 (1986), a qquarter centry ago the Justices no doubt intended to prevent an unfair result in criminal cases attributable to race in jury selection. Statistics are not available from state courts on the efficacy of this decision but it has caused endless legal quarrels for courts to decide.

Since 1986 the Supreme Court has trimmed back federal habeas corpus rulings of state courts by invoking AEDPA. The 9th Circuit, unsruprisingly, has evaded this federal statute almost from its inception in the 1996 Congressional enactment limiting federal circuit court rulings in deference to state courts. Renico v. Lett, 130 S.Ct. 185 (2010). In the last term of the Supreme Court the Justices reversed the 9th Circuit 4 times-all based failure to apply AEDPA. Th current term is no different.

Unable to find any trial court error, the 9th Circuit scours the record for ineffective assisance of counsel. Unsuccessful, it turns to jury selection seeking evidence of prosecution peremptory challenges of minority jurors. By the time the 9th Circuit reviews the state trial on collateral proceedings (habeas corpus) all state appellate courts and the U.S. District Court have rejected arguments of impermissible exercise of peremptory challenges. The 9th Circuit panel talks about deference and ignores it.

For example: Jckson v. Felkner, 131 S.Ct. 1305 (2011) reversed the 9th Circuit Batson ruling granting granting habeas corpus after all state courts and the districct court respectively affirmed on appeal and denied petitions for habeas corpus. Here is the Sureme Court:.”The Court of Appeals for the Ninth Circuit reversed [on Batson grounds] in a three-paragraph unpublished memorandum opinion. In so doing, the court did not discuss any specific facts or mention the reasoning of the other three courts that had rejected Jackson’s claim. Instead, after setting forth the basic background of legal principles in the first two paragraphs, the Court of Appeals offered a one-sentence conclusory explanation for its decision. ‘The prosecutor’s proffered race-neutral bases for peremptorily striking the [two] African–American jurors were not sufficient to counter the evidence of purposeful discrimination in light of the fact that two out of three prospective African–American jurors were stricken, and the record reflected different treatment of comparably situated jurors.’”
“That decision is as inexplicable as it is unexplained. It is reversed.”

“The Batsonissue before us turns largely on an ‘evaluation of credibility.’” The trial court’s determination is entitled to ‘great deference,’ and must be sustained unless it is clearly erroneous. That is the standard on direct review. On federal habeas review, AEDPA ‘imposes a highly deferential standard for evaluating state-court rulings’ and ‘demands that state-court decisions be given the benefit of the doubt.’ Renico v. Lett, 130 S.Ct. 1855 (2010) (internal quotation marks omitted). Here the trial court credited the prosecutor’s race-neutral explanations, and the California Court of Appeal carefully reviewed the record at some length in upholding the trial court’s findings. The state appellate court’s decision was plainly not unreasonable. There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner.”

Harsh words. In Briggs v. Grounds, a 2-1 decision, the 9th Circuit majority followed the advice in Jackson v. Felkner and affirmed the district court opinion and the state court opinion as well. Th dissent written by a judge who has never affirmed a death penalty case in ten years and never been inside a criminal courtroom is a direct contradiction of the Supreme Court.